Bush-era law makes it hard to return unaccompanied kids to Central America

Obama pushes for flexibility to send minors back

Young children join immigration reform protesters while marching in front of the White House July 7, 2014 in Washington, DC. During the rally participants condemned 'the President's response to the crisis of unaccompanied children and families fleeing violence and to demand administrative relief for all undocumented families'.

Win McNamee

Photo by Win McNamee/Getty Images

WASHINGTON, D.C. - Will he or won’t he – that seems to be the question surrounding President Barack Obama’s visit to Texas on Wednesday and Thursday.

Will he visit the U.S. – Mexico border, now ground zero for an influx of tens of thousands of unaccompanied minors streaming into the United States - 52,000 as of mid-June this year. Obama is in Texas primarily to attend private Democratic fundraisers in Dallas and Austin but, so far, no plans to see the epicenter of the crisis.

That may be a mistake given the mounting criticism of the administration’s response to the crisis from both the right and left. Obama will hold a meeting hundreds of miles away in Dallas to discuss the crisis with faith leaders and Texas officials, including Republican Gov. Rick Perry – that’s certain to raise critics’ eyebrows even higher.

Rep. Henry Cuellar, D-Texas, told Fox News, "I hope this doesn't become the Katrina moment for President Obama, saying that he doesn't need to come to the border. He should come down."

George W. Bush was widely criticized for his administration’s response to Hurricane Katrina, which devastated the Gulf Coast in 2005. Among other things, Bush was slammed for praising then-FEMA director Michael Brown - “Brownie, you’re doing a heckuva job” -- and for a photograph taken from Air Force One in which he was seen peering at the wreckage.

Obama is trying a number of approaches to resolving the crisis, asking Congress for nearly $4 billion in emergency funds and vowing to fix the nation’s broken immigration system with or without Congress’s help.

But a 2008 law makes it nearly impossible to repatriate unaccompanied minors to Central America without letting them appear before an immigration judge. And so now the president is seeking to change that law. Obama sent a letter to House Speaker John A. Boehner, R-Ohio, last week saying he would ask Congress to give the Homeland Security secretary more flexibility to send minors back to Central America.

Just before leaving office, on Dec. 23, 2008, George W. Bush signed into law the William Wilberforce Trafficking Victims Protection Reauthorization Act. This bipartisan measure, named for a 19th century British abolitionist, was aimed at extending and beefing up efforts to prevent and prosecute human trafficking and protect the victims of trafficking. More importantly, it described exactly how unaccompanied children crossing the border must be treated.

For children coming from Mexico and Canada, countries with a border with the United States, a Border Patrol officer has the authority to determine whether the child is eligible to stay in the country. And because the child can be easily handed over to officials from his or her home country, the process can move very quickly.

But for kids from Central America, where handing them back to authorities is more complicated, the law dictates that Customs and Border Patrol must turn undocumented children over to the Department of Health and Human Services within 72 hours.

HHS will then hold them humanely until they can be released to a “suitable family member” in the United States.

And the law requires HHS to ensure “to the greatest extent practicable” that these detained children “have counsel to represent them in legal proceedings or matters” who can explain how to apply for asylum or find ways to stay in the country.

At the time, the changes were intended to prevent immigration officials from inadvertently sending kids back to pimps and drug violence. The bill passed with remarkable speed – introduced Dec. 9, 2008, passed the House and Senate on the 10th and signed into law 13 days later.

Last week, a White House official confirmed to USA Today that the administration is considering asking Congress for permission to treat Central American minors similarly to how the government treats children from Mexico.

“The official, who was not authorized to speak publicly about the requested changes, said the administration remains committed to the basic tenets of the TVPRA (the 2008 law) that guarantee protection for children from trafficking and ensures they aren't deported to a dangerous situation. But the official said the changes are necessary to update a law that was crafted when the flow of unaccompanied minors crossing the border was far lower.”

When the 2008 law was passed, most of the children crossing the border were from Mexico. Few made it through the screening process and so most were sent back home rather then housed in the United States. Now, with more children coming from Central America — and automatically put into custody and given full court proceedings — the United States has to house a much larger share of the children who cross and the legal process can take years.

Dana Leigh Marks, the president of the National Association of Immigration Judges, told NPR that there is a such a huge back-log of these cases in immigration courts “that cases can remain pending for as long as four or five years. And, of course, someone who has a right to a hearing before an immigration judge is allowed to remain in the country while they wait for that hearing.”

Gov. Perry has been one of the loudest voicescriticizing Obama’s response to the crisis. On Sunday he repeated an accusation that undocumented children coming to the United States from Latin American countries might be a result of an “ulterior motive” by Obama.

“I have to believe that when you don’t respond in any way that you are either inept or you have some ulterior motive of which you are functioning from,” Perry said during an interview on ABC’s “This Week.”

But like the president, Perry also is calling for these unaccompanied minors to be sent back.

Appearing before a U.S. House Homeland Security Committee field hearing in McAllen, Texas, last Thursday, Perry said no one is doing any of these children a favor by delaying their return home.

“Allowing them to remain here will only encourage the next group of individuals to undertake this very, very dangerous and life-threatening journey. And those who come must be sent back to demonstrate in no uncertain terms that risking your lives on the top of those trains … it’s not worth that.”

Adding guards at the border, increasing funding for all the federal agencies trying to deal with this problem, changing the laws that may have some roll in luring children across the border – these proposed solutions all address the arrival end of the problem.

It’s much tougher to deal with the departure side – the reasons kids are fleeing their homes. Right now, the risks of staying in place are far greater than taking a potentially deadly journey north.

Earlier this year, the United Nations High Commissioner on Refugees interviewed 404 children who crossed into the United States illegally and alone from Central America and Mexico. More than half, 58 percent, said they had suffered, been threatened, or feared serious harm "that might merit international protection.”

A 17-year-old boy who fled Honduras told the UNHCR interviewers, "My grandmother is the one who told me to leave. She said: 'If you don't join, the gang will shoot you. If you do, the rival gang will shoot you, or the cops. But if you leave, no one will shoot you.'"

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